Theses and Dissertations (Public Law)

Permanent URI for this collectionhttp://hdl.handle.net/2263/31848

Browse

Now showing 1 - 20 of 343

Maritime boundary delimitation in Africa : developing a normative and institutional approach for the African Union Border Programme to manage maritime boundary delimitations
(University of Pretoria, 2024-03-29) Tladi, Dire; u28346302@tuks.co.za; Ntola, Siqhamo Yamkela
Jurisdictional certainty in Africa’s ocean spaces, as indicated in the 2050 Africa’s Integrated Maritime Strategy (AIMS), is essential if the continent’s oceans economy is to make a meaningful contribution towards socio-economic development. Indeed, the AIMS directs the Africa Union (AU), through its Border Programme (‘the AUBP’) to ‘make an assertive call to peacefully solve existing maritime boundary issues between Member States […]’ in accordance with the 1982 United Nations Convention on the Law of the Sea (LOSC). The AU Strategy for Better Integrated Border Governance (AU-BIBG) is the AUBP’s strategy for, among other things, resolving boundary issues in Africa. Contributory to the Strategy’s efficacy in this regard is the development of a model by the AUBP from which AU Member States can draw. The basis for inviting the AUBP to develop such a model is because AU Member States, as part of the Strategy’s rollout, are encouraged to develop a comprehensive national Border Governance Policy inclusive of normative, institutional, collaborative and financial frameworks with strategic partnership and communication components that take AU and [Regional Economic Communities (RECs)] policies and legislative blueprint documents [into] account. In a normative and institutional sense, the aim of this study has been to develop, within the continent’s regional and subregional legal infrastructure, approaches to aid the management of maritime boundary delimitations involving AU coastal Member States for the AUBP. Such development represents, in part, the model envisaged by the AU-BIBG from which AU coastal Member States can draw for delimiting their maritime boundaries and/or resolving disputes concerning delimitation, should they arise. Included in the study are discussions on ‘mixed disputes’, which are maritime boundaries that are undelimited owing to an undelimited land boundary or territorial sovereignty dispute over a coastal terrestrial territory. Achieving this study’s objective hinged on developing a normative framework for analysis and applying it to Africa’s factual and legal context. Four undertakings were thus integral in this regard. The first is an understanding of the circumstances and/or issues affecting the lack of delimited maritime boundaries among or involving AU coastal Member States, which is undertaken in chapter two. In this chapter, delimitations are classified in aid of developing the normative and institutional approach. Key findings in this chapter are that: (i) Africa’s colonial past complicates maritime boundary delimitations as past colonial practices have to be interpreted and considered in effecting delimitation; and (ii) a lack of or insufficient diplomatic relations, which speaks to negotiating delimiting boundaries, inhibit the prospect of delimitation. The second undertaking involved developing a normative framework for analysis by achieving two objectives. First, by isolating the AUBP’s mandate and challenges regarding boundary delimitation. This involved discussions on: (i) the AUBP’s fundamental and implementation principles and their relationship with general international law, as well as the AUBP’s objective; and (ii) the legal substance of the outlined principles together with the legal provisions enabling the AUBP to achieve its objective on the continent. The second objective was to shed light on the extent to which Africa’s legal environment impacts on maritime boundary delimitation on the continent. This is done in order to reveal the available legal avenues useful for executing the AUBP’s mandate. Originating from these discussions is that Africa’s regional and subregional legal environment is generally inadequate for addressing delimitations. In varying degrees however, RECs such as the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), and the Southern Africa Development Community (SADC) have viable legal avenues that can be leaned on to execute the AUBP’s mandate for their Member States, which comprise a majority of AU coastal Member States. Informed by the mandate, its implementing challenges and Africa’s legal environment, a three-tiered normative framework is developed and used to analyse the extent to which the AUBP’s mandate in Africa’s legal environment can be executed in light of the LOSC’s provisions concerning maritime boundary delimitation. The third undertaking pertained to understanding the extent to which the LOSC and other tools of international law (such as advisory opinions sought from the International Court of Justice in terms of article 65 of the Court’s Statute) are useful for the mandate’s execution and implementation, which is undertaken in chapters four and five with regard to non-judicial and judicial methods to affect boundary delimitation, respectively. Herein, two of the three tiers of the normative framework for analysis are engaged. Notable findings are that the AUBP’s mandate can be executed at a regional (AU Commission) and subregional level (ECCAS, ECOWAS, SADC) for non-judicial and judicial settlement for delimitations. Assistance in terms of the mandate concerning the non-judicial methods includes facilitating negotiations, which include negotiations for a provisional arrangement of a practical nature over undelimited ocean spaces whilst a delimitation agreement is pending. Where disputes are mixed, assistance in terms of the AUBP mandate may be granted where the land component of the dispute pertains to the location of a land boundary. On judicial settlements, it is noted that the AUBP’s mandate extends to the method where a third-party has jurisdiction to adjudicate over the submitted dispute. States using third-party procedures provided for in section 1, Part XV of the LOSC, do so when there are general, regional and bilateral agreements to this effect in accordance with article 282. On compulsory procedures entailing binding decisions, the AU Commission as well as RECs like the ECCAS, ECOWAS and SADC are viable avenues through which Member States may obtain assistance pursuant to the AUBP mandate. This assistance extends to those States who may submit a dispute to compulsory non-binding conciliation owing to one of them having raised an exception regarding delimitation, historic bays or titles in terms of article 298(1)(a)(i) of the LOSC. In the fourth undertaking, which reflects the normative framework’s third tier, recommendations for a normative and institutional approach for non-judicial and judicial methods for maritime boundary delimitation are advanced. The recommendations are advanced to aid the AUBP in managing delimitations involving AU coastal Member States. Relying on articles 3(2)(h) of the Statutes of the Commission of the AU, articles 7(b) and (c) read together with article 12(c) of the 2019 Protocol Amending the 2008 Protocol on Relations between the AU and RECs AU-REC Protocol, the recommendations show how the AUBP mandate can be executed in the current regional and subregional legal environment.
Enforcement of victims’ right to reparation for violation of International humanitarian law by peacekeepers
(University of Pretoria, 2024-10) Dyani-Mhango, Ntombizozuko; Bradley, Martha; nnamdiumenze@gmail.com; Umenze, Nnamdi S.S.
This study explores the scope of the duty to provide reparations, the individual victims' right to reparation and the process to obtain or enforce reparations for misconduct committed by peacekeepers, which constitutes a violation of international law, particularly international humanitarian law. The study is motivated by the increasing reports against peacekeepers for the crimes they commit in their host countries. The achievements and the challenges of peacekeepers are well documented in the literature. However, in several peacekeeping missions, peacekeepers have been reported to have committed such misconduct as murder, torture and sexual exploitation and abuse, particularly rape against vulnerable civilians they are mandated to protect in their host countries. Thus, such misconduct as murder, torture, and sexual exploitation and abuse committed by peacekeepers not only constitute a violation of the prohibited conduct under international humanitarian law but also a violation of the protected rights of the individuals under international human rights law. Under international law, while the international organisations and the states variously bear the responsibility to provide reparations for internationally wrongful acts attributed to them, the victims of such internationally wrongful acts are entitled to reparations for the injury suffered as a right recognised under international law. However, given the nature of peacekeeping operations, requiring collaborations between the United Nations and the member states, there is always an issue in determining the entity to which the conduct of peacekeepers and the responsibility to provide reparations for victims of the misconduct committed by peacekeepers is attributed between the United Nations and the troop-contributing states. Furthermore, in the instances where the conduct of peacekeepers and the responsibility to provide reparations is attributable to the United Nations, the individual victims are faced with another challenge of legal incapacitation to bring legal action against the United Nations to enforce their right to reparations. The individual victims’ challenge in enforcing their right to reparation against the United Nations is in two folds. First, the legal system of the United Nations does not allow individual action against the Organisation. Second, the United Nations enjoys immunity in the legal jurisdiction of the state courts and the regional judicial tribunals. The study examines the relevant provisions of international law to establish the obligation of the state and international organisations to provide reparations for international humanitarian law violations committed by peacekeepers. It also examines the scope of individual victims’ right to reparation for injuries arising from such violations committed by peacekeepers. Given that the legal system of the United Nations precludes individual victims from bringing legal claims to enforce their right to reparation against the Organisation, the study further examines the adequacy of the mechanisms adopted by the United Nations to settle peacekeeping-related third-party claims. The study concludes that the inability of the victims of the internationally wrongful act committed by peacekeepers to enforce their right to reparation against the responsible state or the United Nations through judicial means owing inter alia, to the immunity of the United Nations amounts to a denial of access to justice and frustration of their right to reparations. It notes that the current mechanism adopted by the United Nations to settle peacekeeping-related third-party reparation claims against the Organisation is inefficient and recommends a model mechanism to improve efficiency in the United Nations peacekeeping-related third-party reparation claims procedure.
Adequacy and comprehensiveness of Zimbabwe’s Laws in combating child labour trafficking
(University of Pretoria, 2024-10-23) Lasseko-Phooko, Matilda; Asaala, Evelyne; zoronkomo@gmail.com; Nkomo, Zororai
The ushering in of the new constitutional dispensation in 2013 heralded the dawn of a new epoch in the reinvigoration of the impetus to fight human trafficking in Zimbabwe by trying to domesticate the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Protocol) through the enactment of the Trafficking in Persons Act of 2014. The ideological underpinning behind the enactment of the TIP Act was to comprehensively combat human trafficking through the implementation and domestication of the international legal instrument to combat trafficking – the Palermo Protocol – which Zimbabwe is a state party. This research examines the adequacy and comprehensiveness of the TIP Act in combating child labour trafficking. It seeks to explore the scope, magnitude, forms, and causes of child labour trafficking. The research focuses on the principal international legal instrument meant to combat child labour trafficking, the Palermo Protocol, in a bid to find the legal solution to child labour trafficking in Zimbabwe. The research will draw inspiration from best practices from South Africa and Kenya on how to craft adequate and comprehensive legislation to combat child labour trafficking which is congruent to the Palermo Protocol. The study will contextualise child labour trafficking to the exigencies facing Zimbabwe while drawing inspiration from the two mentioned jurisdictions of Kenya and South Africa.
The contemporary complexities affecting the assessment of the legal criterion of a non - international armed conflict under International Humanitarian Law
(University of Pretoria, 2024-09-01) Bradley, Martha; ayodele_ojedokun@yahoo.com; Ojedokun, Ayodele Olubunmi
This thesis analyzed the existing laws relating to non-international armed conflict, namely Common Article 3 and Additional Protocol II, to address the complex nature of contemporary armed conflict which often challenges the traditional framework of assessing the existence of a non-international armed conflict. Two major challenges were considered in this thesis. The challenge affecting the first benchmark test of a non-international armed conflict relates to the assessment of the organization of armed groups in coalitions to qualify such alliance as one party to a conflict. The second test challenge addressed the impediment caused by a coalition of armed groups in assessing the intensity of a conflict. The challenges of multiple armed groups fighting collectively or independently against a common entity, be it a state or another armed group, renders the bi–lateral assessment of intensity inappropriate and makes it impossible to determine the ‘protracted armed violence’ and ‘sustained and concerted military operations’ threshold required to create a non-international armed conflict. In response to this operational assessment challenge, the question of whether the Tadic definition and its threshold criteria are fit for purpose to classify complex non-international armed conflicts was examined.
Head of state immunity under the Malabo protocol : triumph of impunity over accountability?
(University of Pretoria, 2019) Tladi, Dire; kobbydaniel@yahoo.com; Daniel, Kobina Egyir
At the 23rd Ordinary Session of the African Union’s Assembly of Heads of State and Government held in Malabo, Equatorial Guinea in June 2014, the Assembly adopted, amongst others, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol). The Protocol would, amongst others, reform the proposed African Court of Justice and Human Rights (which was to be achieved by merger of the African Court of Justice and the African Court of Human Rights) by creating an International Criminal Section. The Protocol also confers on “serving AU Heads of State or Government, or anybody acting or entitled to act in such capacity” immunity from prosecution during incumbency. Predictably, the immunity provision has spawned widespread and trenchant criticism from international criminal justice advocates who claim that the AU seeks thereby to create a culture of and perpetuate impunity. The AU on the other hand asserts not only that it is standing up for itself against neo-colonialist imperialist forces who have perverted international criminal justice and seek subjugation of African States through the International Criminal Court (ICC), but also that it is a champion for the very soul of customary international law on immunities. What this dissertation sets out to do and has sought to achieve has been to undertake a doctrinal study to determine whether the immunity that Article 46A bis of the Malabo Protocol confers on “Heads of State or Government, or anybody acting or entitled to act in such capacity” coheres with international law – lex lata – or represents a retrogression in international law norms that seek to prevent impunity for international crimes. In assessing the oft-made claim about the AU seeking or cultivating impunity thereby, the study has endeavoured to go beyond the self-serving rhetoric of each party in the hero-villain contestation that has characterized AU-ICC engagement over the past several years. It has sought to determine the veracity on the one hand of the claim that the Malabo Protocol’s immunity provision represents an illegal roll-back by the AU of normative gains in international criminal law to ensure accountability for egregious violations of human rights law. It has also sought to determine the legitimacy of the AU’s claims, on the other hand, that Africa has been unfairly targeted by the ICC, that there is no substance to the accusation that it seeks impunity for the category of officials covered by the immunity provision and that its insistence on immunity is but a reflection of its fealty to current international law. Through a review of legal history, case law from national and international tribunals, state practice and academic expositions, this thesis examines the evolution and practice of Head of State immunity as well as recent trends in the practice of the doctrine in light of the countervailing push to establish exceptions to immunity in order to ensure accountability under international human rights and international criminal law. In order to come to conclusions that answer the titular question, this thesis also interrogates the status-inspired dialectics and self-serving hero-villain polemics and consequent actions that fuel contestations of right between the AU and the ICC as well as the worldviews that respectively seek to preserve and overturn the asymmetry of the international legal order. The thesis finds that notwithstanding the lure of the values-laden-normative-hierarchy-inspired push against impunity, values do not international-law make. On the evidence, the immunity clause and undergirding rationale represent neither an illegal rollback by the AU of accountability standards for international crimes nor an altruistic bid by the AU to champion international criminal justice on the continent. The answer to the titular question of this dissertation therefore lies in shades of grey and somewhere in the middle of the respectively indignant and self-righteous stances of the AU and the ICC.
Making a case for the establishment of specialised environmental courts in South Africa
(University of Pretoria, 2024-07-31) Feris, Loretta; bimbola25@gmail.com; Olowa, Abimbola
This thesis considered the benefits of establishing specialised environmental courts in South Africa. The thesis analysed the functioning of four existing specialised courts in South Africa – the Labour Court, the Land Claims Court, the Sexual Offences Court, and the Specialised Commercial Crimes Court and also undertook a comparative analysis of two specialised environmental courts in New South Wales and Kenya to extrapolate useful attributes and best practices that can be adopted in the proposed specialised environmental court in South Africa. Two court models were established as being suitable for South Africa. Recommendations were made for the rollout of the most feasible court model on a pilot basis in Gauteng. Recommendations were further made for new legislation and legislative amendments to current legislation required to establish the two models.
The significance of the Yamoussoukro Decision in the recovery of the civil aviation market in Africa post the COVID-19 pandemic : a consideration of the meaningful impact of the African airspace
(University of Pretoria, 2023-10) Hobe, Stephan; itumeleng.mogashoa@gmail.com; Mogashoa, Itumeleng
The Yamoussoukro Decision is an air transport framework agreement adopted by 54 African states in 1999 with one of its objectives being the achievement of the gradual yet full liberalisation of scheduled and non-scheduled air transport services on the African continent. The Yamoussoukro Decision was however not borne singularly from the Assembly of Heads of State that took place in Lomé, Togo from 10 until 12 July 2000. Prior to the adoption of the Yamoussoukro Decision, the Organisation of African Unity (OAU), which is the current day African Union (AU), under the auspices of the Economic Commission for Africa of the United Nations Economic and Social Council (UNECA), adopted the Declaration of Yamoussoukro on A New African Air Transport Policy, (Yamoussoukro Declaration) in 1988 which are a set of measures designed to enable signatories thereto to exchange air traffic rights in a liberal manner, address the issue of under-development in the African air transport market and to achieve the integration of African airlines. These were collective measures that were taken to respond to and counter the socio-economic challenges faced by the continent, to be achieved through, at that particular juncture, the integration of African airlines within a period of eight years. This was the beginning of an attempt to liberalise the African airspace, albeit not explicitly expressed as such in the policy document. An expanded policy framework known as the Single African Air Transport Market (SAATM) was launched in Ethiopia as part of the continued efforts by the AU to expedite the liberalisation of the African continent air transportation market. These policy instruments remain critical for the recovery of the African air transportation market from the COVID-19 pandemic.
The appropriateness of child support grants in advancing the socio-economic rights of children in South Africa
(University of Pretoria, 2024-02) Pillay, Rani; ramothwala.attorneys@gmail.com; Ramothwala, Mpho Olivia
This study investigates the appropriateness of Child Support Grants (CSGs) in advancing the socio-economic rights of children in South Africa (SA), as guaranteed in sections 27 and 28 of the Constitution of the Republic of SA, 1996 (‘Constitution’). Having regard to the Constitution, the Children’s Act 38 of 2005, the South African Social Security Agency Act 9 of 2004, the Social Assistance Act 13 of 2004 and other primary sources, the study establishes the nature and extent of children’s socio-economic entitlements. The study investigates the evolution of CSGs, together with the need, purpose and adequacy of CSGs. In relation to the latter, the study unpacks the requirements and criteria to access, and qualify for, CSGs before, and after, the promulgation of the Regulations Relating to the Application for, and Payment of Social Assistance and the Requirements or Conditions in Respect of Eligibility for Social Assistance, which came into effect on 31 May 2022 (‘2022 Regulations’). The study enquires into whether the current means-tested system of CSG is promoting, protecting, respecting and fulfilling the best interests of children in SA. As a related enquiry, the study investigates the extent to which children’s constitutionally guaranteed socio economic rights, together with their right to dignity, is protected within the current social security regulatory system involving CSGs. In particular, the study investigates the current state of poverty and inequality in SA, and evaluates the effectiveness of CSGs in alleviating poverty and reducing inequality. In addition to constitutional and statutory provisions, the study analyses case law, empirical evidence collated by other scholars and recent statistics reports to resolve the research problem identified. It compiles findings and recommendations that will assist the state, specifically the South African Social Security Agency (SASSA) and the Department of Social Development (DSD), together with other stakeholders to ensure the effective use of CSGs to improve the living conditions of impoverished children through good governance, with better checks and balances
A critical analysis of the regulation of agricultural land under the draft preservation and development of agricultural land bill, of 2021
(University of Pretoria, 2023-11) Muller, Gustav; Kotze, Tina; marinus@mvjattorneys.co.za; Van Jaarsveld, Andries Sarel Marthinus
The regulation of agricultural land in South Africa draws effect from several existing statutes at the backdrop of the Constitution. The Draft Preservation and Development of Agricultural Land Framework Bill 2021 was firstly tabled in parliament on April 2021, forming part of a tapestry of statutes for the regulation of what is regarded to be natural resources. Summarily, the motivation and purpose of the 2021 Draft Bill is clearly set out, amongst other things, the need for a national regulatory framework to co-ordinate the preservation and development of agricultural land in a proactive manner, to minimise the loss of agricultural land, and to encourage the optimal use of agricultural land. The 2021 Draft Bill is to give effect to the constitutional obligation imposed in section 24 for the protection of the environment for the benefit of current and future generations, to ensure sustainable ecological development, and to provide food security. The primary aims of this study are accordingly to answer a twofold question of how will the regulation of agricultural land, as proposed in the 2021 Draft Bill, regulate agricultural land in South-Africa, and what impact would the regulations have on property rights and national food security. Furthermore, the study investigates whether the 2021 Bill is an answer to the Constitutional obligation to ensure access to food. An analysis is done on how agricultural land will be regulated in future by the 2021 Bill and if this may amount to an arbitrary deprivation. The study answers the aims mainly at the backdrop of the application of the provisions of the 2021 Draft Bill and the methodology as articulated in First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance (FNB Methodology).
The prohibition of terrorism under international humanitarian law and international criminal law
(University of Pretoria, 2023-10-31) Casey-Maslen, Stuart; kylamuller@gmail.com; Müller, Kyla Annancia
Terrorism is a widely spoken word globally, with not many people understanding its true meaning or its place within international law. The idea of terrorism usually involves suicide bombings, mass shootings and/or murders in everyday life. The realm of terrorism within the context of International Humanitarian Law, that is during armed conflicts, shows a lack of research and action. Despite the lack of a universal definition of terrorism, the existence of this crime is not in dispute. The international legal community have several conventions related to terrorism, which will be discussed in this paper, however, the lack of accountability, investigations and prosecutions for the crimes committed during armed conflicts show a clear lacuna in both International Humanitarian Law and International Criminal Law. This gap in the law brings doubt about whether civilians truly are protected by International Humanitarian Law and whether International Criminal Law suffices to protect civilians through the criminalisation of terrorism during armed conflicts. This research paper intends to explore the legal prohibitions and protections provided under International Humanitarian law and International Criminal Law, specifically related to terrorism and acts of terror in the context of armed conflicts. Several treaties and case law examples will be discussed and interpreted in an attempt to determine whether there is indeed a prohibition on terrorism in armed conflicts and what protection is afforded against it for civilians, specifically in detention. And if this is answered in the affirmative, we may be a very small step closer to bringing justice to victims of terrorism.
The Wagner group in Africa : legal status and accountability during non-international armed conflicts
(University of Pretoria, 2023-10-27) Maslen, Stuart; u17055599@tuks.co.za; van Schalkwyk, Megan
This mini-dissertation examines the growing concern surrounding the involvement of private actors in conflict situations, where their lack of accountability, owing to the absence of responsible State actors, poses a potential threat to international humanitarian law and human rights law. The research focuses on the Russian company, PMC Wagner Group, analysing its legal standing in domestic and international contexts under international humanitarian law, especially within non-international armed conflicts. Considering the absence of a comprehensive international regulatory framework or accountability mechanisms for private military and security companies, this research explores the attribution of responsibility for violations of international humanitarian law and human rights law committed by the Wagner Group in Africa. The specific focus lies on the Group's involvement in the non-international armed conflicts in the Central African Republic and Mali. The research aims to contribute to a practical legal framework regulating private military and security companies' activities, ensuring accountability for their violations of international humanitarian law and human rights law. This is particularly crucial in non-international armed conflicts, where private actors significantly impact civilian protection and the overall conduct of hostilities.
Interim interdicts and their effect on the governance of electricity supply : the role of section 30 of the South African Electricity Regulation Act in dispute resolution
(University of Pretoria, 2023-06-30) Gerber, Leonardus; klaas.ntuli@up.ac.za; Somo, Tshephisho Mokone
The South African Constitution, over and above providing for rights and obligations, makes provision for the relevant organs of state against which these rights and obligations may be enforced (the constitutional scheme). There have been instances where the duties of the spheres of government are conflated because of the proximity of their functions. However, organs of state are still obligated to give effect to the constitutional scheme in the exercise of their duties. The aim of this study is to investigate investigates whether interim interdicts instituted by the residents of municipalities (residents) against Eskom Holdings SOC Ltd (Eskom) for the supply of electricity, have ¬ as a result of the interim relief granted by the courts ¬ resulted in the Judiciary subverting the constitutional scheme and regulatory framework. To achieve this aim, the study examines the constitutional and regulatory scheme governing the supply of electricity. The study then investigates how interim interdicts, instituted against Eskom for the supply of electricity to the residents of municipalities, are decided by the courts. This is followed by an assessment to determine whether the Regulator can play a role in resolving electricity supply disputes between municipalities, the residents of municipalities and Eskom. Finally, the study examines whether section 30 of the Electricity Regulation Act (ERA) provides an alternative mechanism for dispute resolution where a temporary (interim) resolution is required, while upholding the constitutional and regulatory scheme. The research was conducted because there isn’t currently a comprehensive analysis investigating whether such interim interdicts potentially subvert the relevant regulatory framework. Additionally, the dispute resolution mechanism provided in section 30 of the ERA does not seem to be fully utilised by the residents of defaulting municipalities. Using a qualitative method in the form of pure desktop study, the research revealed that any “right to electricity” arises out of a municipal constitutional obligation to provide municipal services. The research further revealed that, even at the interim relief stage in applications for an interim interdict, there is no prima facie right to electricity that is directly enforceable against Eskom. Thus the courts deciding that there is in fact such a right, results in an interpretation of a prima facie right outside the bounds of legality. The research further revealed that section 30 of the ERA provides a dispute resolution mechanism that allows the Energy Regulator to provide relief to parties requiring a temporary dispute resolution in electricity supply disputes. The research also revealed that it is compulsory for aggrieved parties to first refer a dispute to NERSA in terms of this provision for them to meet the last requirement for an interim interdict, namely there must be no other remedy.
Classification of Non-International Armed Conflicts S : Lessons from the Sierra Leone Conflict
(University of Pretoria, 2023) Probert, Thomas; muhadam180@gmail.com; Adam, Muhammad
Classification of armed conflicts in international law is important because it determines whether the law of international armed conflict or the law of non-international armed conflict applies to the parties in a conflict. The clearer and more accessible the law of conflict classification is to all involved, the better the chance that those affected will be in a position to apply international humanitarian law correctly in urgent or borderline situations. Classification is additionally relevant to international criminal law since the existence of an armed conflict informs the two contextual elements inherent in war crimes as the type or categorisation of armed conflict determines the category of crimes under which the alleged offender is charged. This research explores what constitutes a non-international armed conflict, the challenges of classifying conflicts with legal certainty and the mixed nature of the armed conflict that took place in Sierra Leone. The Sierra Leone conflict spanned eleven years and had different dimensions and parties that were of abiding significance to the classification of the conflict. However, in the case of Prosecutor v Fofana the Special Court failed to consider the issue of classification. The study, accordingly, draws lessons from the Sierra Leone conflict on ways to approach conflicts of a mixed nature taking into consideration the complexities of the conflict and the missed opportunity by the Special Court.
Redrawing the contours of rationality review in South Africa ; procedural fairness as a component of rationality requirement of legality
(University of Pretoria, 2023) Ncame, Noluthando; nkamza36@gmail.com; Nkamana, Zingisani
The coming into force of the interim Constitution and later, the final Constitution in 1996, ushered, amongst other things, a need to control the exercise of public power. Rationality was introduced as one of the principles necessary to control the exercise of public power and uphold the rule of law. Under the principle, decisions can only be rational if there is a rational link between the exercise of power and the decision itself. This means that the power must only be exercised for the purpose for which it was granted for. Over time, this principle has developed to include, amongst others, rationality of the process leading to the actual decision being taken. This has become known as procedural rationality. This development brought another aspect; whether considerations on the process should include requirements of procedural fairness. The apex court has given inconsistent rulings on this aspect. Relying on the academic writings, the dissertation has argued that the expansion of procedural rationality should be embraced. Through this expansion, the recognition of procedural fairness advances values that underpin the Constitution such as accountability, openness and transparency. Although there are valid concerns about the impact of its expansion on subsidiarity and separation of powers, these concerns could be managed if the courts could delineate cases that should be resolved using legality principle and those that can only be challenged through PAJA. This will ensure that legality contributes positively to the values of the Constitution and the development of legality jurisprudence.
An Analysis of the Constitutional Foundations on the Devolution of State Authority in Africa : A Comparative Study
(University of Pretoria, 2024) Bekink, Bernard; Ceo@icld.co.za; Olanipekun, Olusegun
This full dissertation in public constitutional and administrative law examines the constitutional foundations on decentralisation and devolution of state authority in Africa. It compares the constitutions of South Africa, Kenya, and Nigeria, examining and analysing the provisions in each towards the empowerment of the lowest levels of government. It concludes that substantive devolution includes constitutional or legal, political, and administrative, economic devolution and the autonomy of local government. Full Dissertation (LLM) University of Pretoria 2024.
The role of state parties in the interpretation of the Rome Statute : an evaluation of past practice and future prospects
(University of Pretoria, 2023) Tladi, Dire; carolshilaho@gmail.com; Shilaho, Caroline Vicheti
The study aimed to assess the role, if any, of States Parties, acting individually or collectively, in interpreting the Rome Statute of the International Criminal Court (Rome Statute) when the Statute has granted the express role of its interpretation to the International Criminal Court (ICC). It sought to determine the extent to which any such role might cause tension and, if so, how such tension might be eased. It was noted that while the Rome Statute expressly provides for the judicial interpretive role of the ICC, it does not explicitly provide for the States Parties to the Rome Statute (States Parties) role in the judicial interpretation of the Statute. The study argues that the Vienna Convention on the Law of Treaties (VCLT) interpretation rules in Article 31(3)(a) and (b), which provide for the taking into account of States parties’ subsequent agreements and practice in the treaty’s interpretation, provide the legal foundation for the continued participation of State parties in interpreting their treaties. Based on the customary nature of the VCLT interpretation rules and the Rome Statute being a treaty, it was concluded that the rules also apply to the Statute’s interpretation. On this basis, it is noted that the States Parties also have a role in the Rome Statute’s interpretation based on their subsequent agreements and practice, which include adopted amendments or resolutions relating to the interpretation and application of the Statute. This forms the study’s original contribution to knowledge and research. Based on this shared interpretive authority and the lack of clear demarcation in the interpretive roles, it is argued that some overlap may arise. The overlap may especially arise when States Parties, through their legislative body, the Assembly of States Parties (ASP), adopt amendments or resolutions directly related to ongoing cases in the ICC. It was illustrated in two instances that such ASP action may be construed as an attempt by the ASP to influence the ICC’s decision with consequent possible violation of the Court’s judicial independence. On the other hand, it is noted that States Parties have the mandate to adopt amendments or resolutions clarifying ambiguous provisions or correct what they deem an incorrect ICC interpretation as treaty owners. Construed as subsequent agreements, the ICC has to decide whether to incorporate the ASP resolutions or amendments as binding or discretionary subsequent agreements in its decisions. The study concludes that the ASP has the authority to adopt amendments or resolutions clarifying ambiguous provisions or correcting erroneous ICC interpretations. Nevertheless, to achieve balance and ease any current or potential tension based on the shared interpretive role, it is proposed that the ASP should adopt amendments and resolutions before any related case is filed in Court or after the conclusion of relevant cases. It is argued that this context and time-based amendments and resolutions would protect the ICC’s judicial independence. On the other hand, it is further recommended that the ICC treat the ASP’s resolutions and amendments as binding subsequent agreements in the Rome Statute’s interpretation when adopted by consensus. This is on the basis that when adopted by consensus, the amendments or resolutions represent the States Parties clear intentions regarding the Statute’s interpretation. These discussions form an original contribution to the research and knowledge in an attempt to balance the ICC’s and States Parties shared interpretive roles in fulfilling the Rome Statute’s objectives of fighting impunity.
The effect of section 11 of the natural wealth and resources (permanent sovereignty) act no 5 of 2017 on bilateral investment treaty protection in Tanzania
(University of Pretoria, 2023) Gerber, Leonardus J.; u21732079@tuks.co.za; Malimi, Prezidius
In 2017, Tanzania introduced a new legislation in the extractive sector, the Natural Wealth and Resources (Permanent Sovereignty) Act No. 5 of 2017 (‘the Act’). The legislation prohibits the referral of cases to international arbitration forums regardless of the fact the extractive sector in Tanzania largely depends on foreign direct investments for its growth and development. Tanzania is a signatory to 20 bilateral investment treaties, two (2) of which were terminated, eight (8) were not yet in force, and the rest were in force. Bilateral investment treaties are agreements designed to safeguard business operations in the host state against expropriation and unpredictable regulatory regimes. The primary aim of this study is to determine whether there is compatibility between section 11 of the Act and the terms of the selected BIT(s) regarding the adjudication of disputes arising out of the exploitation and extraction of natural wealth resources. The study applies an exhaustive literature review of the state of Tanzania's extractive sector from Internet sources and published academic writings. The primary sources include the Natural Wealth and Resources (Permanent Sovereignty) Act No.5 of 2017 and five (5) selected bilateral investment treaties. The bilateral investment treaties were selected based on the financial investment already invested into Tanzania's extractive sector. The study analysed the five selected BITs to which Tanzania is a signatory against the introduced section 11 of the Act.4 The findings suggest that Section 11 of the Act conflicts with the bilateral investment treaties to which Tanzania is a signatory.
High Altitude Platform Stations (HAPS) : The new Frontier at the intersection between Air and Space Law
(University of Pretoria, 2023) Hobe, Stephan; wydemancoetzee@icloud.com; Coetzee, Wydeman
This mini-dissertation intends to explores the use of High-Altitude Platforms (HAPS) for broadband communication services in rural areas as an alternative to mobile networks, as half the world's population, most of whom live in rural areas, lacks internet access. Finding ways to improve broadband access and telecommunication services, particularly in rural and underserved areas, is essential for closing the digital divide. The advantages that HAPS have over traditional terrestrial and satellite wireless networks are numerous. HAPS have the potential for wireless communication and are deployable stations that can operate at altitudes between 20 and 50 kilometres. However, their unproven nature prompts inquiries, especially into their legitimacy. Because they operate in the stratosphere, a previously uncharted zone, HAPS is not like other space-launched items in terms of design or purpose. As a result, there is still a lack of clarity regarding the rules and regulations that apply to HAPS operations. Therefore, this paper intends to look at the different legal frameworks which might be applicable to HAPS. It seeks to analyse the current division between air law, which is licensed and operates within the national (Aviation Authorities) and international (International Civil Aviation Organisation (ICOA)) jurisdictions. The various space treaties which govern space activities and the role of the International Telecommunications Union (ITU) which identifies relevant radio frequencies for the use by HAPS.
International air and space Law boundaries : A new frontier
(University of Pretoria, 2023) Hobe, Stephan; u16003472@tuks.co.za; Cornelius, Willem Stefanus
On the 22nd of October 2021, a revolutionary new device called a Sub-orbital Accelerator was powered up for its first test launch in the desserts of New Mexico in the United States. The kinetic Sub-orbital launching system launches a rocket object into the atmosphere where rocket boosters ignite to propel the rocket object to reach lower Earth Orbit to deliver payloads such as satellites. The rocket object launched from the system travels through airspace to reach lower earth orbit and beyond. The rocket object travels through airspace and into outer space. Airspace and outer space are governed by fundamentally different legal regimes. Under Air Law States have exclusive territorial jurisdiction over their airspace, whereas in Space Law which governs outer space - State sovereignty is prohibited, as outer space is subject to non-appropriation. The differences between the legal regimes begs the question where delimitation may be found between airspace and outer space. The predominate theories regarding delimitation are the Spatialist and Functionalist approaches. Proponents of the Spatialist approach suggest various lines or boundaries based on different applicable standards. The Functionalist approach in the alternative places focus on the type of object in order to determine whether or not it operates in airspace or outer space. Under the Functionalist approach, should the rocket object launched from the Sub-orbital Accelerator be made for atmospheric flight it would function within airspace and in the alternative should the rocket object be made for beyond atmospheric flight it could be considered a space object. Upon re-entry the rocket object remains classified as a space object. Both the Functionalist and Spatialist approaches escape the general acceptance of States- although both theories are still primarily the sources that dominate the thinking of States and bodies such as the United Nations.
The conflictual triangular relationship between the United Nations Security Council, the International Criminal Court and the African Union through the lens of cooperation : the implications for international criminal justice
(University of Pretoria, 2024) Tladi, Dire; Tladi, Dire; madilangoai@gmail.com; Ngoai, Madila Asiel
Cooperation, which is the main theme of the study, is at the centre of the regime of the International Criminal Court (ICC). Without cooperation, which is a key principle of international law, the ICC would essentially be a “giant without arms and legs”. Though not specifically defined, it is understood to be an obligation of means, not of results. Through the ages, states have cooperated for various reasons, although primarily to advance their national interests. The importance of cooperation in international law has even led to some authors suggesting that apart from the law of coexistence, there is a new structure of international law – the law of international cooperation. Ideally, the relationship between the ICC, the UN Security Council and the African Union should be grounded in the law of international cooperation. However, the relationship between these entities has deteriorated and become strained and is characterised by a lack of cooperation. While much of the spotlight is on the African Union’s non-cooperation stance with the Court, all three entities are, to an extent, responsible for the standoff. The standoff between the three entities started when the UNSC’s referral resolution placed only the situation states, Sudan and parties to the conflict under mandatory obligation to cooperate with the Court. This action by the UNSC could be seen as an attempt to circumvent the cooperation framework of the Rome Statute. After the referrals, the entity similarly did not assist the Court in gaining cooperation from recalcitrant states. Equally so, when deferral request was submitted, it was not formally considered despite meeting the required provisions. Furthermore, the UNSC attempted to invoke the deferral article for unintended purposes, thereby making the entity an active participant in the triangular conflictual relationship. In trying to secure cases and cooperation from states, the prosecutor was seen as operating too close to the politicians, which many warned could damage the image of the Court. In cases where the Court was called upon to give an authoritative interpretation of the cooperation framework, it gave conflicting decisions with the result that the cooperation model of the Rome Statute was transformed from an inter-state to a supra-state model of cooperation. As it stands, and notwithstanding the exceptions provided for in the Statute, states parties are under a mandatory obligation to cooperate with the Court in all circumstances. The decisions have given credence to the accusation that in its quest for cooperation, the Court does not necessarily apply the law as provided for in the Statute but rather acts as an instrument to achieve political outcomes. Despite not being party to the Rome Statute, the AU has decided that all African States Parties must not cooperate with the Court. This decision is unprecedented, as the Statute was not adopted under its auspices and the African State Parties do not have any cooperation obligations to the AU. This decision stems from AU’s dissatisfaction with the UNSC. Unless the three entities find some common ground, it seems the triangular conflictual relationship with cooperation at the centre of the conflict, will persist for the foreseeable future.

Browse

Recent Submissions